Quite the Child Custody Dispute
An excerpt from the >9000-word In the Interest of O.S. & U.S., decided Thursday by Texas Court of Appeals Justice Wade Birdwell, joined by Justices Elizabeth Kerr & Dabney Bassel:
Appellant A.H. (Mother) and Appellee I.S. (Father) divorced in 2014, and they were appointed as joint managing conservators of their two sons—O.S. (Owen) and U.S. (Uriah)—with Mother having the exclusive right to determine the children’s primary residence. In the years that followed, Mother remarried, then after separating from her new spouse, she and the children began living with L.W.B. (Partner). {Although Partner self-identified as a female, multiple witnesses—including both Partner and Mother—testified that “legally, [Partner’s] a male.” We therefore use male pronouns for Partner to avoid confusion.}
Both Mother and Father petitioned to modify the custody order based on the changed circumstances, and the trial court—after hearing evidence of each parent’s alleged misdeeds, of Owen’s medical issues, of Uriah’s educational arrangements, and of Partner’s background and social-media posts—found that the children’s best interest would be served by giving Father the exclusive right to decide their primary residence, their education, and their invasive medical procedures.
Mother challenges this modification …. Her primary complaint is that there was insufficient evidence to support the modification because no reasonable factfinder could have believed Father or taken Partner’s social-media posts seriously. Therefore, Mother reasons, the modification must be attributable to the trial court’s unconstitutional “punishment” of her based on Partner’s transgender identification and exercise of his right of free speech. But such allegations merely seize on a tangential hot-button issue in an attempt to avoid the trial court’s credibility determinations. The trial court heard conflicting evidence of two imperfect parents, and it acted within its discretion based on its assessment of the witnesses’ credibility….
The evidence showed that
- in 2015, Mother began a relationship with Partner, and he began living with her and the children;
- in 2016, during a “break” in Mother’s relationship with Partner, Mother married Husband [not Father -EV], and she and the children moved in with Husband;
- in 2017, Mother and Husband separated, and she moved out with the children; and
- later in 2017, Partner moved in with Mother and the children….
[T]he parties vehemently disputed (1) Mother’s failures to surrender possession of the children; (2) the children’s medical incidents and education; and (3) Partner’s influence on the children. [For more on issues 1 and 2, see the full opinion; I will focus here on aspects of issue 3. -EV] Specifically, Father pointed to Partner’s background, his treatment of the children, his alleged instability, and his social-media posts.
[a.] Background
Partner was a biological male who identified as a female. He openly admitted that he had been involved in the sex industry in the past, stating that, before his relationship with Mother, he had spent approximately “[a] year and a half or two years” working as a prostitute through Craigslist advertisements. Around that same time, Partner had performed live online “stripping” shows from his home. But Partner noted that he had stopped such work before he began his relationship with Mother and that Mother had indicated they could not live together if Partner resumed prostitution.
Mother, for her part, questioned the sincerity of Father’s concern about Partner’s work in the sex industry. She elicited testimony that she and Father had met at a BDSM event and that Father had worked with a filmmaker who had produced BDSM videos. In fact, Mother noted, a least one of Father’s other children had been involved in a political film made by the filmmaker, and although the film had not been sexual, it had been advertised on the filmmaker’s website alongside the filmmaker’s sexual content.
Mother also questioned the propriety of Father’s relationship with his wife. Mother’s counsel repeatedly referred to Father’s wife as his “niece,” which label Father disputed, though he conceded that “[his] mother and [his wife’s] grandfather [we]re a couple.” Father clarified, though, that his wife was not his mother’s child and that there was “[n]o genetic[ ] no[r] biological connection” between them. {Mother’s cross-examination of Father hinted that Father’s wife was young enough to be his daughter, even implying that Father had considered adopting his wife prior to their marriage. But Mother did not present evidence of Father’s wife’s age, and Father denied ever having contemplated such an alleged adoption.}
As for Partner, his work in the sex industry was not the only area of his background that Father highlighted:
- Partner admitted that, in appr
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